Editorial: Forfeiture use ensnares more than criminals

Published 4:37 am, Friday, April 14, 2017

Years ago, a Corvette cruised along the highway, adorned with “police” insignia and red and blue lights. On the back was this message: “Crime doesn’t pay. This is a drug-seized vehicle.”

The humorous part of this was that crime apparently “did” pay — not many working class drivers could tool around in a $55,000 car.

What “didn’t” pay was getting caught.

And it shouldn’t. There should be stringent penalties for those convicted of serious crimes and, in the case of things such as drug trafficking, the ill-gotten gains of those acts should be taken away.

That was part of the reasoning for civil asset forfeiture, which allows law enforcement agencies to take away property used for criminal activity.

Over the years, though, the rules have been relaxed to the point it now allows the government to take property suspected — that’s a key distinction here — of being used in the commission of crime. Although the guidelines vary from state to state, in many places it is possible to have property seized without being convicted. In a few other states, it doesn’t even require a person be charged in some instances.

It’s been called “policing for profit.”

In Illinois, research by the Illinois Policy Institute and the American Civil Liberties Union found police and sheriff’s departments, state’s attorneys and other law enforcement authorities seized more than $319 million worth of property from 2005 to 2015. That’s about $31 million a year and does not include millions more seized under federal authority. Between the U.S. Justice Department and U.S. Treasury Department, $29 billion in property was forfeited from 2001 to 2014.

Most of the money generated through the sale or auction of confiscated property is returned to the local authorities to be used as they want.

Civil forfeiture is a throwback to the long-lost War on Drugs of the 1980s, when laws normally used to seize contraband from ships were adapted on the federal level to hit those involved in the drug trade. In 1984, the rules were changed to allow states to create their own laws for forfeiture.

Cash, real estate, automobiles — most anything of value — was taken under criminal forfeiture laws following a person’s conviction of a crime. Drug crimes are the most common, but even traffic offenses such as driving under the influence could be included.

Here’s where it started to get tricky: civil forfeiture laws cleared the way for property to be taken without a conviction if law enforcement authorities believed it was used for or gained from criminal activity. It does not require the alleged criminal own the property being taken; there are a number of cases when cars have been seized because a person was busted for drugs while driving a friend’s vehicle.

The process to get property back can be lengthy and costly.

University of Illinois law professor Kenworthy Bilz sees benefits in forfeiture laws as a law enforcement tool, but understands some of the backlash that has arisen.

“[It] has led to truly abusive and even disgusting trends,” Bilz said. “Some investigations have found examples of departments spending more resources and efforts pursuing the assets of criminal offenders than pursuing the criminal offenders themselves. Some departments exacerbate the potential injustices to innocent owners by telling them that if they sign waivers agreeing not to challenge the forfeiture, the police will agree not to arrest them.”

Lawmakers are expressing concern, too. Rep. Tim Walberg of Michigan and Sen. Rand Paul of Kentucky are among those pushing legislation to reform civil asset forfeiture.

States, too, need to address its growing use by such things as requiring a conviction before forfeiture, making law enforcement agencies publicly disclose forfeitures, and create clear protections for those who are innocent of a crime but become entangled in a process that has become over-used, overly complex and heavily weighed against the accused.